April 10, 2013

Want to Read the Law? It'll Cost You.
The fight to make building regulations truly free

Say you live in Rhode Island and want to upgrade the ancient plumbing in your kitchen. You figure you should be able to save some cash and do it yourself, but want to make sure you're on the up-and-up with all applicable codes and regulations. So you head over to the state’s website to read the plumbing code.

Problem is, the 15-page "code" is actually just a series of modifications to a 156-page volume of standards published by the International Code Council—the 2009 edition of which, according to the introduction to the state regs, “is protected by the copyright that has been issued to the ICC. As a result, the State Building Code is not available in complete form to the public in an electronic format."

Your choice: $89 for a printed copy, or $74 for an e-copy. But why should you have to pay to read laws that you must obey?

You shouldn't, of course. Neither state nor federal law is copyrightable. Nevertheless, standards development organizations—from the American Society of Sanitary Engineers to the National Wood Window and Door Association—insist otherwise, having poured resources into developing long, technical regulations because the government didn’t have the expertise to do so.1 Now, state and federal laws simplyreference these industry codes, and allow non-profits to charge for hefty books.

For decades, reading these books for free has required trekking to your state capitol, or if you’re lucky, a local library. But the Internet has created an expectation that everything be made available online, searchable, linkable, printable, and free—especially something that seems as rightfully in the public domain as the law of the land.

Carl Malamud believes this more strongly than most. The open-government activist, who pushed the Securities and Exchange Commission to post corporate documents online and C-SPAN to make its video archive more widely available, has been either scanning or painstakingly re-typing and posting standards on his website Public.Resource.org for anyone to download. He started back in 2008 with California’s codes, and had posted 10,062 standards as of the end of last year. When the standards developers ask him to stop—as six have done so far—he politely refers them to the 2002 decision in Veeck vs. Southern Building Code Congress International, in which a circuit court judge ruled that “as law, the model codes enter the public domain and are not subject to the copyright holder’s exclusive prerogatives.”

Malamud typically doesn’t hear back after sending his response. But the Sheet Metal and Air Conditioning Contractors Association, which publishes standards relating to ducts and ventilation, wasn’t satisfied. In February, they followed up with a letter protesting that that the 9th Circuit had ruled differently back in 1997, and the decision still holds. Malamud,with the help of the Electronic Frontier Foundation, fought back with a complaint against SMACNA, asking that a judge resolve the legal question once and for all: Does the public have the right to the law, or doesn't it?

"This isn't a public statute," says Vince Sandusky, SMACNA's president. "It's a copyrighted document that was developed by SMACNA. We are fulfilling a very important role that government and others have not taken on. It's not a small task. We are entitled, as a matter of sound public policy, to a revenue stream that allows us to do that."

Malamud points out that SMACNA already benefits from the fact that they essentially get to write the law, with the participation of government bureaucrats. "In most cases their members benefit hugely from the fact that these standards exist," he says. "For example, if you're a sheet metal contractor, it's a wonderful thing that every building must be tested for leaks periodically."

The case hits the U.S. District Court of Northern California in June. If the court decides to rule on the merits, its decision wouldn't just make it easier to bring your house up to code. It could also force one of the fastest changes to an entrenched business model in judicial history—a model that shouldn't have been allowed to take root in the first place.

Money is at the heart of most fights over open access to public resources. The federal court system, for example, charges 10 cents per page through PACER because the website generates about $100 million for upgrades to courtroom technology. Malamud had worked with internet activist Aaron Swartz, who committed suicide in January, to "liberate" millions of PACER documents. And aproject has been underway since 2009 to do the same thing more gradually, with the help of willing pirates who install a browser plug-in that automatically uploads PACER documents they buy to a site called RECAP (get it?). But the courts are unlikely to stop charging for good if that steady funding stream isn't somehow replaced.

Same goes for state regulations that legal information services like LexisNexis and Westlaw now hold exclusive rights to distribute. Governments haven't had the technical capabilities to maintain their own online legal databases, so they license them to private companies, which results in web pages that can't be linked to or searched (if there's a public version at all). Malamud is also on a crusade to defy those policies—his most recent victory was in Washington, D.C., where hescanned the 32,062-page, leather-bound volume of municipal regulations and posted it online. The next week, D.C.'s general counsel waived the copyright provisions, andmade the entire thing available for free download.

In both situations, the government should fund the systems required to make the law freely accessible and reproducable, so that the tech-savvy may find user-friendly ways to display it. Technical codes, however, pose a different challenge. The American Society for Testing and Materials, for example, makes $38.6 million from selling publications—losing even the income from those that have been incorporated into law would be a big hit to its $61 million in total revenue. Another big group, the National Fire Protection Association, relies on the regs for $42.6 million out of its $70 million in revenue. If they didn't distribute the burden across everyone who pays for copies, either government or industry would have to bear most of it, which NFPA president Jim Shannon doesn't think is desirable either.

"The system that we've got now provides us with an independent revenue source," he says. "We don't want any one source, even the government, to pay for them, because ultimately then you're beholden to them."

Malamud thinks the standards development organizations could probably find a way to make it work. He points to the organizations' high executive salary packages—Shannon made $1.04 million in 2011, and ASTM president James Thomas made $914,000—and suggests they could compensate for lost revenue by doing more training and certification, selling deluxe editions, and charging higher membership fees. "There is lots of money sloshing around the system, including plenty to pay for public access," he says. Plus, when the NFPA did make the codesavailable for free in read-only format, it didn't see a big decrease in print sales. It's possible that customers would still want the dead tree version, even if the group gave up its copyright entirely. (Columbia University administrative law expert Professor Peter Strauss, who is also advising Malamud, has put together a comprehensive set of proposals for how this might be accomplished.)

But voluntary change is hard, and it's easier to just try to protect your franchise. The International Codes Council has spent afew hundred thousand dollars a year since 2005 lobbying Congress, and when the National Archives and Records Administrationasked for comments on Strauss’ request to change how the federal government incorporates privately-written codes, the American National Standards Instituteprotested vigorously, arguing that the internet “has not changed the underlying protections of intellectual property, nor has it changed the need and the ability of standards developers to cover the significant costs of creating the documents that are used to further public policy goals in law and rulemaking."

That may be true in the arena of expressive works, like music and literature, which people have a choice to consume or not. But when it comes to the law, the right to read and reproduce rules the public must obey trumps the right of authorship. Legally binding codes and standards should never have enjoyed the protections of copyright, and the internet has only made it easier for them to be distributed free of charge.

Most industries have been forced to adapt to the demands of digital capitalism, after all. It’s time our democracy adapted, too.

1

The international voluntary standards movement got started back in 1918, when five industry associations joined to found the American Engineering Standards Committee, which exists today as the American National Standards Institute.